Complaints against Magistrates, to whom Competent. - In Diligence against a Community, who must be Cited.
John Clarkson, Baker in Edinburgh, v. The Magistrates of Edinburgh
Date: 9 June 1743 Case No. No 31.
Citation of the Magistrates of a burgh, as representing the community, is not sufficient. The Town Council must be cited also, in order to render the community liable for any debt.
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A mob having broke into some granaries in Leith belonging to John Clarkson, and taken a quantity of victual out thereof, he brought an action against the Magistrates of Edinburgh, for themselves and successors in office, as representing the community, upon the act of the 1st Geo. I. entituled, “An act for preventing tumults,” &c. concluding, in the terms thereof, that they should be found liable to him in damages; and cited the Provost, Bailies, Dean of Guild, and Treasurer of Edinburgh.
Objected to the execution, That the action was not regularly brought against the town, in respect the Town Council was not summoned as well as the Magistrates.
The Lords sustained the objection, and found no process. But the pursuer having reclaimed, the Lords sustained process, and repelled the objection to the execution.
And the defenders having reclaimed in their turn, the Lords found, That the ordinary form of summoning burghs, by the law of Scotland, so as to make the community liable for any debt, is to summon the whole Town Council, as well as the Magistrates, and therefore sustained the objection against the execution, and found no process.
